Wampanoag Tribe Presses Claim for Sovereignty in Zoning Case

A shed and a pier in the tiny town of Aquinnah were the fulcrum for
court arguments this week that will ultimately test the question of
whether the Wampanoag Tribe of Gay Head (Aquinnah) waived sovereign
immunity when it signed a land claims settlement agreement in 1983.

The settlement agreement later led to federal recognition for the
tribe.

"A pier and a shed are the triggering events, but the issues
go to the heart of the relationship between the tribe and the town and
they go to the heart of the settlement agreement. As you can tell, we
need guidance, we need judicial guidance to tell us what the rules of
the road are," declared Aquinnah town counsel Ronald H. Rappaport.

"The knife edge here is that when you're talking about
sovereign immunity, to take away a tribe's sovereign immunity is a
very, very serious act," countered Douglas J. Luckerman, a
Lexington attorney who represents the tribe.

The two attorneys squared off in the Edgartown courthouse Wednesday
afternoon during a special sitting of Dukes County Superior Court. The
Hon. Richard F. Connon, an associate justice of the superior court,
presided.

The Wampanoags are the only federally recognized tribe in the
commonwealth.

On the face of it, the case involves a simple zoning dispute that
began when the tribe built a small shed and pier at the tribal shellfish
hatchery in March 2001 without obtaining a building permit. The hatchery
is located on the Cook Lands fronting Menemsha Pond in Aquinnah, one of
four land areas conveyed from the town to the tribe under terms of the
1983 settlement agreement.

In May 2001, town officials went to court to compel the tribe to
comply with zoning rules.

The tribe moved to have the case heard in federal court, but last
fall U.S. District Court Judge Douglas P. Woodlock sent the case back to
state court because it involves a zoning dispute.

Attorneys for the tribe say the tribe cannot be sued because of
sovereign immunity, while attorneys for the town say that when it comes
to zoning and land use law, the tribe waived sovereign immunity when it
signed the settlement agreement with the town that later led to federal
recognition.

At the outset on Wednesday, Judge Connon allowed the Gay Head
Taxpayers' Association and the Benton Family Trust, an abutter to
the Cook Lands, to intervene in the case on the side of the town.

There was a brief flurry over procedure as lawyers for the tribe
asked to be allowed to argue first on their motion to dismiss, which had
been filed late last week. (The central case revolves around motions for
summary judgment, which means that there is no dispute about the facts
in the case, only on the issues of law.)

Judge Connon said he would hear all the arguments at once, although
he promised that he will later rule on the motion to dismiss before he
rules on summary judgment.

Mr. Rappaport anchored his arguments in the history of the case,
which includes four key events: the 1983 settlement agreement, a state
law adopted in 1985 ratifying the terms of the agreement, a federal law
adopted in 1987 also ratifying the terms of the agreement and federal
recognition of the tribe in 1987.

The settlement agreement and the state and federal acts all contain
explicit language noting that the land conveyed to the tribe is subject
to state and local laws.

"The facts are undisputed and it involves a simple question.
There is no question that the Cook Lands are subject to zoning, and it
was stated in four separate documents. The issue for you now to decide
is whether the process and the plain language of those four documents
should no longer apply," Mr. Rappaport said.

Mr. Rappaport, who has represented the town as its counsel for 21
years, spoke in a tone of gentle respect.

"Aquinnah is a small town, your honor, it's a town where
tribal members hold a number of positions in town government, and it is
a town where there is a pattern of working together," he said.

He noted that the tribe has in fact complied with zoning over the
years, and he recounted the various building projects - and
building permits - that the tribe has applied for and received.

James L. Quarles 3rd, a partner at Hale and Dorr in Washington,
D.C., who represents the taxpayers' association and was involved
in the original settlement agreement, also used history as a backdrop
for his argument.

"It is useful to take yourself back to 1983," Mr.
Quarles said. He continued:

"The vision was that we were not going to have a traditional
western Indian reservation in the town of Gay Head. Instead we would
have an agreement and the rules would be clear and there would be no
physical divisions in the town - the land would look the same.

"How did the parties do it? They did it in a very common sense
way - they said to the town, you don't need to worry, we are
going to be subject to zoning just like every other group in town. They
didn't say they were immune. Congress acted and Congress acted
clearly - the tribe has waived sovereign immunity and this case
should be decided here. To hold that they have sovereign immunity in
this case would turn all these documents on their head."

Mr. Luckerman argued that there is a distinction between
jurisdiction and sovereignty. "We wholeheartedly disagree that the
word jurisdiction includes the power of the courts. It's a rule of
federal law that when a tribe is federally recognized that law requires
that it must be stated expressly and unequivocally for a tribe to waive
its sovereign immunity," Mr. Luckerman said.

"It cannot be accomplished by ambiguous language or a gesture.
There is a difference between the right to demand compliance with state
law and the means to enforce it … the Massachusetts Indian Land
Claims Settlement Act of 1987 did not waive the tribe's sovereign
immunity," he added.

Attorneys on both sides used case law to support their position.

Among other things, Mr. Luckerman pointed to a discrimination case
involving the Wampanoag tribe that was decided by the Hon. Reginald
Lindsay in federal court several years ago. In the decision, Judge
Lindsay found that the settlement agreement did not abrogate sovereign
immunity.

"We think the case is applicable," Mr. Luckerman said.

But Mr. Rappaport noted that the case centered on the internal
workings of the tribe and not land use.

"Judge Lindsay looked at the settlement act and said that his
case dealt with the inner workings of the tribe, while the settlement
act placed burdens on the land and said the tribe has to comply with
zoning," he said.

Both attorneys cited United States Supreme Court cases on Indian
law.

"The Supreme Court could not have made it clearer, if
you're going to waive sovereign immunity you've got to do it
expressly and unequivocally. The Supreme Court has said often you
can't get there by inference, it has to be front and
center," Mr. Luckerman said.

But Mr. Rappaport noted a recent U.S. Supreme Court case involving
arbitration for an Indian tribe that went the other way.

"Expressly saying you have waived immunity -
that's not where the United States Supreme Court is and it's
not where it is going. I see no difference between arbitration and
zoning. Zoning is not just about setbacks and height limits, it's
a statutory scheme. You can't agree to be subject to zoning and
not have review in the courts," he said.

Mr. Luckerman said the tribe plans to enforce its own compliance
with zoning rules.

"They want to take on more of this responsibility, it's
not a matter of slighting the town, it's their desire to become
the community they had dreamed of becoming," he said. "The
plaintiffs are attempting to bootstrap the tribe and the catastrophic
results that plaintiffs and the interveners are prophesying, we
don't expect to happen. Being frustrated with the outcome is not
enough to overturn Indian law."

Mr. Rappaport had another view.

"If the tribe's position is correct, then in effect they
could build anywhere and no one could sue them over it. That is not a
result that was contemplated in this agreement, and it should not be
countenanced by you. I am not suggesting that the tribe would do
anything wrong, I am simply suggesting that these are the rules of the
game. And the consequences are where do people go for relief? The tribe
would be the applicant, the permit granting authority and the
adjudicator. You have one entity ruling all the rules of the game, and
there's something the matter with that," he concluded.

As Mr. Luckerman's arguments came to an end, Judge Connon
broke in with questions.

"What you are saying is that when Congress passed this act [in
1987] imposing these restrictions, they didn't mean it?" the
judge said.

"Well, we don't know," Mr. Luckerman began, but
the judge broke in again.

"If the court buys your argument, if I rule against you on the
motion to dismiss and then favor the defendants on summary judgment,
then the tribe will have the authority to build whatever they want to
build on this land?" he said.